BUCHAREST BLOG: Romania joins the bad boys of Central Europe

Effigies of PSD leaders dressed in prison stripes appeared at protests in early 2017.

By Clare Nuttall in BucharestAugust 16, 2018

The Romanian government has been acting like an authoritarian bully, thumbing its nose at criticism from the street and Brussels as it pushes ahead with plans to take direct control of the the justice system as well as decapitate the highly respected National Anticorruption Directorate (DNA). A violent crackdown on demonstrators in Bucharest on August 10 has shocked the nation and only served to sully the government’s already poor image as a progressive European democracy.

The initially peaceful protest outside the government building on Victory Square turned violent after riot police repeatedly fired tear gas into the crowd and turned water cannons on the protestors. The crowds had swollen to around 100,000, bolstered by members of the diaspora some of which had flown in from their new homes specifically to reinvigorate the flagging protest movement. Romania has become used to protests as the population has become radicalised by the ruling parties repeated attempts to undermine the country’s inchoate democracy and inoculate itself from prosecution for graft, lead by the pioneering anticorruption institution of the DNA.

One protester, interviewed by bne IntelliNews’ correspondent at the protest, said the police were “trying to make us terribly mad” with their intense and unprovoked use of tear gas, adding he feared the crackdown at the protest was a “first step to dictatorship”. Mobile phone footage released in the days after the protest shows unprovoked and brutal attacks on protesters, as well as attacks by suspected provocateurs on the gendarmerie – football thugs brought in to provide a justification for the use of police violence, intended to intimidate the increasingly vocal citizenship that are determined to hold the government to account.

Once eager for Brussels’ approval, as it sought a more central role within the EU, in recent months the government in Bucharest has followed a European-wide trend of increasingly authoritarianism that blithely ignores the European values that are part and parcel of EU accession. The government has repeatedly shown that it is prepared to ignore criticism from institutions in Brussels and western governments in pursuit of the interests of the ruling elite.

The Romanian authorities are following the example set by other countries that joined the EU in the first wave of Eastern enlargement in 2004 — specifically Hungary and Poland — that have challenged Brussels’ authority and sought to assert their own national sovereignty. By contrast, the later entrants Romania and Bulgaria seemed, until now, consistently keen to align themselves with the EU and its values.

Now this is changing as Romania, like its northern neighbours, has earned the opprobrium of the EU with its onslaught on the justice system and the undermining of the anti-corruption fight that has been a beacon in the region where all the new EU members are attempting to tackle corruption with mixed results.

The underlying issue is that membership of the EU means adopting its institutions, but unformed institutions are clumsy tools of control and the temptation is to revert to the use of corruption and client-sponsor relations that are simpler to operate and have the advantage of personally enriching their executors in the process. Add to this the client-sponsor system means political power accrues to the individual controlling the system and in the rough and tumble of the post-Socialist world politicians are reluctant to weaken their personal power by strengthening the power of institutions that are in the best interests of society, as they are often engaged in politically existential struggles with other less scrupulous rivals. As a result to a great extent across the entire region corruption is not a problem of the system: it is the system.

The backtracking in Romania started shortly after the Social Democratic Party (PSD) and its junior coalition partner the Alliance of Liberals and Democrats (Alde) were returned to power in the December 2016 general election. The following month, the new government adopted a controversial decree partly decriminalising abuse of office, a charge frequently used by prosecutors against officials who had stolen state resources. Forced to back down and cancel the decree by the biggest mass protests since the fall of communism, the government didn’t give up. Instead it went on to launch repeated effects to chip away at the effectiveness of the judicial system and the DNA over the following 18 months.

By mid-2018, the parliament had approved a series of controversial changes to the criminal procedure code. In a return to the original course of attack by the government, the planned amendments to the criminal code include a redefinition of abuse of office, which would partly decriminalise the offence. Other changes concern the justice system, and have been criticised for limiting the freedom of expression of magistrates and weakening the role of the Superior Council of Magistracy (SCM), as the guarantor of the judiciary’s independence.

The DNA is the embodiment of the anti-graft efforts and represents the transformation of the system to all that the EU means in terms of a functioning liberal democracy based on accountable institutions. As such it has been the target of the revanchist forces that want to keep the old client system, as well as protect their ill-gotten gains, as the changes threaten the liberty of the elite – as several high ranking politicians have found to their cost and are now in jail.

The government’s efforts to discredit and neutralise the DNA, which has spearheaded efforts to bring corrupt top officials and businesspeople to justice, have finally paid off. In July, the Constitutional Court ruled that President Iohannis must comply with a request from the justice minister that he dismiss its iconic head Laura Codruta Kovesi, widely seen as the doyen of the anti-corruption efforts in the country.

Unsurprisingly, these efforts have met with criticism from the EU and western governments. The latest annual Co-operation and Verification Mechanism (CVM) report issued on Romania last November warned of challenges to judicial independence and a slowdown in the reform process. Bucharest’s efforts to overhaul criminal legislation later sparked an ad hoc expression of concern from the European Commission in June, which stressed that the “fight against corruption and ensuring an independent, professional judiciary is of paramount importance”. A few days later, 12 of Romania’s international partners, including France, Germany and the US, called upon the country to consider the potential negative impact of criminal law amendments.

Another illiberal democracy

The attacks on judicial independence in Romania, and the violence at the August 10 protest, have drawn comparisons with the so-called “illiberal democracies” in the Visegrad region. Poland, like Romania, has clashed with Brussels over its judicial overhaul, while the values of the governments in both Budapest and Warsaw are at odds with those of the bloc. The root of these illiberal democracies is the pull and push of where ultimate political power lies: in the hands of politicians or in the institutions they are supposed to manage that are specifically designed to cap personal power and make it accountable.

Where Romania differs from, for example, Poland or Hungary is that the agenda of the government doesn’t appear to be driven by idealism, but by the need to protect its politicians from the consequences of their past actions.

Hungary’s Prime Minister Viktor Orban has repeatedly expounded his concept of illiberal democracy, first outlining the basic ideas at an infamous address in the Romanian town of Baile Tusnad in 2014 where he claimed to be building an "illiberal state". Speaking to ethnic Hungarians in Romania, the PM declared liberal democracy a failure, and held up Russia, China and Turkey as models for Hungary if it wished to stay competitive globally. Both Russia and China have institutions, as both are simply too large to run on the basis of personal relations with key officials alone. But they are hybrid models where the client-sponsor relations are key and epitomised in Russia’s “vertical power” model. In Turkey’s case the country’s EU ambitions has seen a lot of institution building when the country actually had a chance of joining the EU trade club, but Turkish president Recep Tayyip Erdogan is now working hard to undo the power of these institutions and has already accumulated a lot of power in his own hands following the constitutional changes earlier this year to create an executive presidency.

Four years later, again in a speech to ethnic Hungarians in Baile Tusnad, Orban called for the advent of "Christian democracy”, an ideology he defined as "anti-immigrant" and “anti-multicultural”, standing for the Christian family model.

"There is liberalism in the West, there is no democracy," said Orban, going on to call the European Commission a "symbol of failure."

The ruling Fidesz’ demonisation of immigrants, which was stepped up ahead of the April 2018 election that Orban’s Fidesz won by another supermajority, successfully tapped into the fears of many Hungarian voters, but was motivated by concerns over and above political expediency.

In Poland, the Law and Justice Party (PiS) that came to power in 2015 has been pursuing a deeply conservative agenda, for example in its attacks on abortion rights, at the same time as eroding freedom of the media and embarking on a much criticised overhaul of the justice system.

Romania’s PSD has also toyed with conservative ideas, for example with plans (later dropped) for a mass rally in support of the “traditional family” and discussions of a referendum against same-sex marriages (not yet scheduled). There popularist ideas are the façade behind which attacks on liberal institutions can be mounted, as they are easy to sell to the population.

However, one of the top grievances of the protesters in Romania is that the changes there — that they fear could destroy the fight against corruption and distort the justice system —are so blatantly motivated by self interest – legalising corruption is a very hard sell indeed.

Specifically, they are seen as benefitting one man: Liviu Dragnea, the leader of the ruling PSD and arguably the most powerful man in the country even though he is barred from holding an official position because of his two criminal convictions.

The decree adopted back in January 2017 set the bar for abuse of office being a criminal offence at damages of RON200,000 (€44,500 at the time); the damages in the case where Dragnea had been indicted amounted to RON108,612. Had the decree stood, the charges against the PSD leader would have been dropped. Instead the politician, who had already been issued a suspended sentence in an earlier case concerning voter manipulation, went on to stand trial and was given a three year, six month prison sentence – the first time such a senior figure has been convicted.

Similarly, the new changes approved in July stipulate that the offence would be applicable only to public officials whose actions bring benefits to themselves or their close relatives — this would again allow Dragnea to evade justice as the case concerned two county council employees who were working on PSD business, thereby benefitting the party rather than Dragnea himself.

After the events of August 10, even some within the PSD have said the relentless focus on judicial changes and its undermining of the anti-corruption fight have to end. A senior member of the party, former education minister and leader of the PSD’s Bucharest branch, Ecaterina Andronescu, wrote in an open letter quoted by Hotnews.ro that “What is happening now within the PSD and in the country is not all right, it has gone ... too far.” Andronescu went on to ask Dragnea to resign, though it’s unlikely that he will. Other PSD members who have stepped forward to criticise the authoritarian party leader tend to be summarily expelled.

No unanimity

The EU didn’t remained silent while Hungary and Poland set about adopting changes that went directly against the core values of the union. At issue is the very foundation of the principles of government on which the EU is built: liberal and accountable institutions that are designed to protect the interest of the population and place checks and balances on those in power. The accession countries signed up to this model of government when they joined in 2004 and rejecting it now is not an option for Brussels.

In December, the European Commission triggered the “nuclear option”, Article 7, against Warsaw in December, which may lead to it stripping Poland of its voting rights in the EU for undermining the rule of law.

Meanwhile, Hungary has received warnings for its controversial NGO law and attacks on civil society. Last month the European Commission launched an infringement procedure against Hungarian legislation dubbed “Stop Soros”. Hungary will also be referred to the Court of Justice of the European Union over the country's asylum policies, a European Commission spokesperson said in July.

Despite this, the two countries have continued to defy warnings from Brussels. Warsaw is pushing ahead with its challenges to the rule of law, adopting legislation that will make it easier to stack the Supreme Court with PiS loyalists and remove the court’s president Malgorzata Gersdorf more quickly. The government in Warsaw, like its counterparts in Bucharest, appears to have decided to ride out domestic protests and international criticism rather than engaging or backing down.

Moreover, the Visegrad 4 states have increasingly been acting as a bloc to increase their leverage on issues like migrant quotas, where they have strong differences with the “old” EU members to the west. Poland and Hungary have said they will support each other when officials in Brussels try to call either state to account. Budapest has made it clear that it would veto any decisions to penalise Poland by stripping Warsaw of its voting rights, and the Polish government returned the favour the same after the European Parliament adopted a resolution to trigger Article 7 against Hungary in May after the government approved controversial legislation on asylum seekers and NGOs and the Central European University. Since major decisions like these require unanimity, this means there are no really effective sanctions against infringers.

Even the proposed cuts to cohesion spending for Poland and other CEE countries in the next EU budget, presented as a shift in priorities towards the crisis-hit southern members of the union but perceived as a punishment for the Visegrad 4’s lack of cooperation on refugee quotas, are likely to be softened before the budget is adopted, as this again requires unanimity.

In Romania, international criticism coming on top of the enormous protests managed to act as a check on the government the first time around in spring 2017. But the government pressed on, and eventually fatigue meant that protester numbers fell — even on August 10 they didn’t reach the hundreds of thousands seen in early 2017.

The PSD and its allies are relatively secure in their majority in both houses of parliament, and may have assumed the protests will have subsided sufficiently not to affect their chances when the next general election comes around in late 2020 or early 2021. Anti-corruption protesters are more or less by definition not going to be PSD voters in the first place.

This means the PSD most likely is taking the gamble that its tinkering with the judicial system and criminal law won’t alienate its support base to the extent that it loses the next election. And while the international criticism is unwelcome, Brussels has proved itself toothless in similar standoffs with Budapest and Warsaw.

As a result, the Romanian government — driven by the self-interest of its top politicians rather than illiberal ideology — is taking its place alongside the challengers to the EU’s value system from CEE. And the bigger the cohort of illiberally minded CEE nations within the EU becomes, the more power it has within a union that is still grappling with Brexit and other crises.

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